NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
v. Buncombe County
No. 04 CVS 4265
THE GROVE PARK INN RESORT, INC.,
a Delaware Corporation,
Appeal by Plaintiff from judgment entered 1 August 2005 by Judge Gary E. Trawick in Buncombe County Superior Court. Heard in the Court of Appeals 6 June 2006.
Kelly & Rowe, P.A., by James Gary Rowe, for Plaintiff- Appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King, III, and John S. Buford, for Defendant- Appellee.
On 1 August 2005, without specifying the basis for its ruling, the trial court granted summary judgment in favor of Defendant and dismissed Plaintiff's breach of contract claim following a hearing on Defendant's motion for summary judgment held 18 July 2005. Plaintiff timely appealed, alleging that summary judgment was not proper. For the reasons set forth below, we affirm the trial court.
After obtaining an order of the superior court extending thetime to file its action, on 27 October 2004, Plaintiff filed a complaint against Defendant alleging breach of contract and seeking damages in excess of $300,000. In its complaint, Plaintiff alleged that on or about 6 March 2001, the parties entered into a Purchase Agreement, by which Defendant agreed to sell the Bynum House to Plaintiff with the provision, among others, that the house be removed from Defendant's property on or before 31 December 2001. Plaintiff further alleged that at Defendant's request, Plaintiff delayed obtaining the required demolition permit to allow Defendant additional time for property design and development. According to the complaint, in July 2001, Defendant advised Plaintiff to proceed with securing the appropriate permit, and on or about 15 August 2001, Plaintiff submitted to the City of Asheville an application for a demolition permit for removal of the Bynum House. It is undisputed that Plaintiff never obtained the required permit to remove or demolish the subject property.
Plaintiff further alleged that on or about 6 September 2001, Defendant asked Plaintiff to relinquish its rights under the Purchase Agreement. Plaintiff refused because the salvage value of materials Plaintiff planned to remove from the Bynum House was between $300,000 and $350,000. On 8 October 2001, according to the complaint, Defendant advised Plaintiff that it must 'remove the house from its existing site, relocating it on to another site andrebuild it completely thereon.'
Plaintiff alleged that Defendant breached the parties' contract by refusing to allow Plaintiff to demolish the Bynum House on its existing property and failed to deliver possession of the property to Plaintiff as stated in the Purchase Agreement.
Defendant filed an answer, alleging, inter alia, that Plaintiff's claim was barred by the running of the applicable statute of limitations. Defendant also counterclaimed for damages alleging that Plaintiff had breached the parties' Purchase Agreement by failing to take certain actions by 31 December 2001. In reply to Defendant's counterclaim, Plaintiff denied it had breached the parties' contract.
On 27 May 2005, Defendant proceeded with a Rule 30(b)(6) deposition, at which Jerry Gilley, managing member of Plaintiff, appeared and testified as Plaintiff's corporate representative. Pertinent to our resolution of the issues on this appeal, Mr. Gilley testified as follows:
At the time the agreement was prepared, it was Mr. Gilley's intention to demolish the house. He had not decided whether to demolish it for salvage or catalog and rebuild it. Subsequently, Mr. Gilley decided that it was not economically or geographically prudent to move the house to a different location. At some point between 6 March 2001 and 20 May 2001, Mr. Gilley was given accessto the house, but claimed that he did not prepare an application for a demolition permit because Defendant asked him to put everything on hold until Defendant was able to turn the house over to him. At the time, Defendant had personnel, furniture, and other materials in the house. Mr. Gilley was not given the keys to the house until 20 May 2001, when he was asked again to wait before submitting a demolition permit application. It was Mr. Gilley's understanding that since the Purchase Agreement required all of the applicable permits to be obtained before 1 July 2001 and Defendant had asked him to wait, Defendant agreed that the 1 July 2001 deadline did not have to be met. Mr. Gilley acknowledged that no extension or revocation of the 1 July 2001 deadline was recorded in the contract nor confirmed in writing, and that no consideration was given for the alleged change in terms, even though he was familiar with the clause in the Purchase Agreement which required any modifications of the contract to be in writing.
Mr. Gilley further testified that he received a letter dated 7 September 2001 from counsel for Defendant which stated that Plaintiff was not to access the Bynum House until Defendant was satisfied that Plaintiff would not sell parts of the Bynum House for salvage. Mr. Gilley considered this request by Defendant to be a violation of the Purchase Agreement.
Additionally, Mr. Gilley received a letter dated 21 September2001 from Defendant's attorney, which stated that Defendant would not allow Plaintiff access to the house unless Plaintiff agreed to rebuild the house in a different location. Mr. Gilley testified that he also considered Defendant's position as set out in the 21 September letter to be a violation of the parties' agreement. In a letter dated 26 September 2001, Mr. Gilley informed Defendant that he disagreed with Defendant's interpretation of the Purchase Agreement.
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